Death By A Thousand Cuts

Will Santa Fe’s campaign to buy up water rights kill the Rio Grande?

Eight miles south of Socorro, Vannetta Perry owns a 54-acre farm. Her husband bought the land in 1973, and five years later, the couple started growing crops like alfalfa, winter wheat and corn for grain. Both worked other jobs to keep the farm running.

“It’s almost impossible to be out of the poverty level just by farming if you’re a small farming operation,” says Perry. “But for us, for my husband and I, we chose that as a way of life. We chose it for our children and because we love farming.”

But when Perry’s husband, Gary, died in 2010 of a rare brain disease, she couldn’t keep up with the loan for the land where they raised their children and where she continues to live while working as the Socorro’s interim superintendent.

That’s when she decided to sell her water rights—164 acre-feet, or more than 5.3 million gallons—from the Rio Grande to the City of Santa Fe.

“If I sell my water rights, I can pay off my farm and continue farming by leasing water from the Middle Rio Grande Conservancy District,” she says. The conservancy district delivers water to irrigators in a 150-mile stretch of the river. “I’m selling my water so I can keep the farm and continue farming it.”

Situations like Perry’s show how tenuous a grasp farmers have on the future—and how natural it is for people to assume the Rio Grande will always provide for their needs. Water moves around New Mexico in clouds, streams, pipelines, and also on paper. Since every drop of water flowing through the Rio Grande has been allocated to someone, the only way for cities or developers to find “new” water is to buy and transfer it. The New Mexico Office of the State Engineer approves each of these transfers, most of which are relatively small: five acre-feet here, 24 acre-feet there. (One acre-foot equals 325,851 gallons; it’s the amount of water needed to submerge one acre of land under one foot of water.) But what happens when someone adds up all those numbers and accounts for how all those transfers affect neighboring water users, the future of agriculture in the state and the ability of New Mexico’s biggest river to keep flowing?

As it turns out, no one may be doing that accounting.

Water rights are complicated throughout the arid western United States, but they’re downright confounding in New Mexico. Attorneys dedicate entire careers to understanding them. The OSE has yet to quantify them. And a cadre of federal, state and local agencies; water utilities; and irrigation districts works daily to ensure everyone actually has water to flood onto fields, use in their homes and keep businesses open.

But pared down, there are just a few things to keep in mind: Water in New Mexico’s streams and rivers belongs to the public. The state holds that water in trust and grants water rights—basically, private property rights—to those who can prove they will put the water to “beneficial use.” Beneficial use means they’ll irrigate fields for crops, build cities and consume water for industry. The system was set up in 1907, while New Mexico was still a territory, and not too long after that, all of the water rights in the Rio Grande were granted away to owners.

Between Cochiti Dam and the northern tip of Elephant Butte Reservoir—what’s called the Middle Rio Grande—the water has all been parceled out, but the state still isn’t quite sure how much water belongs to all the different users. Six pueblos have water rights in amounts that have never been tallied, and could actually include the entire river. No one knows exactly what rights irrigators or the Middle Rio Grande Conservancy District hold. Cities such as Albuquerque and Rio Rancho rely on the river for water supplies, as does the computer chip maker, Intel Corp. On top of that, the Middle Rio Grande is the endangered silvery minnow’s only remaining habitat.

The gauge at Otowi Bridge helps water managers determine how much Rio Grande water New Mexico must deliver to Texas.

As cities continue to grow, and developers seek “new” water, they need to find a willing seller—like Perry or the hundreds of others who sell their water rights. But those numbers add up: Over the past few decades, 21,000 acre-feet of Middle Rio Grande water have been transferred. In recent years, some of those water rights have even been transferred 100 miles upriver to Santa Fe.

The City of Santa Fe gets its water from four different sources: two well fields where water is pumped from an underground aquifer; the Canyon Road Water Treatment Plant, which captures and treats snowmelt and runoff from the Sangre de Cristos; and the Buckman Direct Diversion Project, which pulls water from the Rio Grande.

“In general, Santa Fe is in very good shape relative to most other cities in the Southwest because we have a very diverse portfolio of water supply sources,” says Rick Carpenter, the city’s water resources and conservation manager. But it’s always a balancing act. The city owns rights to a certain amount of groundwater; if it pumps so much that water gets siphoned from the Rio Grande, the city has to move water around and pay it back to the river.

The city also has a water bank. When developers plan to build something like a new housing division, city ordinance requires that they hand over water rights to the city in an amount equal to what they plan to use in the future. This ensures that the new development won’t increase the city’s net demand for water, Carpenter says.

“Typically, those rights come from the Middle Rio Grande because that’s where they tend to be available and not priced outside of what the market is able to bear,” he says, adding that currently, an acre-foot of water from the Middle Rio Grande costs about $12,000-$15,000.

“We’ve been doing it for a few years, and the concept is a sound one, though it’s relatively new in land use planning,” says Carpenter. “What we’re trying to do is tie the development of land to the availability of water.” It seems like a no-brainer, especially in the arid Southwest. But as recently as 10 years ago, few cities considered how land and water were tied together when approving new development and industries; some still don’t consider that when inviting in new industries or approving new subdivisions.

Of course, water transfers themselves aren’t new. People have been transferring water rights throughout the West for about 150 years, says Bruce Thomson, a professor of civil engineering at the University of New Mexico and the director of UNM’s water resources program. “The state of New Mexico is chronically short of water,” Thomson says. “Nearly every municipality [and] every utility is looking for another source of water, and frankly, there are no new sources of water.”

He adds that transfers do vary in size and impact. The San Juan Chama Project, for example, moves 110,000 acre-feet of water from the Colorado River Basin via the Chama River into the Rio Grande for cities such as Albuquerque, Santa Fe and Los Alamos.

“So what difference does 100 acre-feet mean?” Thomson asks. “The answer is none, except in the aggregate. When you do this times 100 people or 1,000 transfers, it starts to add up.”

Each year, about 1 million acre-feet of water flow past a gauge at the Otowi Bridge, downhill from Los Alamos. Of that, about 400,000 acre-feet is destined for the Middle Rio Grande. The rest goes to Elephant Butte, the Lower Rio Grande, and on to Texas.

“Now, we’re not talking about 100 out of a million [acre-feet]; we’re talking about 100 out of 400,000,” Thomson says. “And if you transfer from south to north, that results in a little bit less water in the river—so again, in the aggregate, they start to make a difference.”

With no “new” water available, transfers are a big part of New Mexico’s water scene. “When we consider these transfers, we need to recognize that there almost certainly will be an impact,” Thomson says, “so we have to balance the benefit of the transfer versus what the cost of the impact might be.”

According to Lela Hunt, public information officer for the OSE and the Interstate Stream Commission, the state does consider impacts. She writes in an email that when someone applies to transfer water, he or she must demonstrate that the change will not “impair existing water rights, and will not be contrary to water conservation or detrimental to the public welfare of the state.” The state engineer quantifies and evaluates the potential effects of the transfer, Hunt writes, and determines whether they will damage the rights of other water users.

Considering New Mexico’s critical water situation—a situation that will grow increasingly dire as the state’s climate warms, surface water supplies decrease and populations continue to expand—transfers are integral to the state’s ability to keep water moving to the people who need it. Or at least to those who can pay for it.

The search for water is happening statewide, just as farmers everywhere are trying to survive and maintain their way of life. In northern New Mexico, acequia communities have long struggled to hold onto their water rights. That fight continues today, but with an added suite of problems: Farmers can’t support their families from the land, and older generations of irrigators aren’t being replaced by younger kin. As a result, some users are selling off their water rights. That’s a problem for their neighbors: The less water in the system, the less push there is to move it to the furthest reaches of the ditch.

But thanks in part to one decades-old water battle, acequia members can have a say in whether their neighbors can transfer water out of the community.

In Tierra Amarilla in the 1970s, Tierra Grande Corporation was building a ski resort and subdivision. After digging out a gravel pit, they filled it to create a lake. Ordered by the state to breach the dam—because they had no rights to the water from Nutritas Creek—the developers tried to purchase the land and water rights of two nearby owners. This set off a water battle between developers and the Ensenada Ditch that zigzagged its way in and out of the OSE and the courts. The ditch association lost its case in appellate court, but the Legislature amended state law, requiring the state engineer to consider “public welfare” when approving future water transfer applications.

In 2003, the Legislature passed another statute giving acequia communities the authority to evaluate water transfers before they ever reach the state engineer. At a May meeting of the New Mexico Acequia Association in Santa Fe, New Mexico Legal Aid attorney David Benavides explains to a packed room how that law empowers acequia associations to keep water from leaving their communities.

When evaluating a water transfer, he says, acequia commissioners set up a hearing procedure that is “fair and unbiased”; for 90 days, they allow everyone involved to comment. After that, the commission can decide whether an individual transfer will have a negative impact on the acequia as a whole.

Later in the meeting, people break into small groups. Each of the four men seated near the back of the room has gray or thinning hair; two could be considered elderly. This group looks pretty much like all the others in the room.

One man speaks of what he calls a mayordomo crisis. (The mayordomo oversees maintenance of the acequia and schedules water deliveries.) “No one wants to be a mayordomo anymore because it’s so much work.” Another asks, “Who volunteers nowadays?” and everyone shakes their heads.

“They’re talking about seeing people at farmers markets selling their stuff for peanuts,” says a third man, who speaks softly in a melodious New Mexico accent. “Everything is backwards.”

Taken all together, their stories make one thing clear: At the same time that cities need more water—and are willing to pay for it—farmers have little chance of making a living on their own lands. Without a community’s guidance, or peer pressure, the temptation to sell their water rights must be extraordinary.

But now, acequia members who can’t make a living, or whose children don’t want to farm or irrigate, have another option: They can allocate their water to a water bank. The member maintains the water rights—which can be lost under state law if the water isn’t being put to “beneficial use”—but the water is deposited into the acequia. Benavides encourages people to set up water banks within their acequias. “All there is to water banking is paperwork,” he says. “If you do it right, you will protect those rights.”

But there’s only so much small farmers and acequia members can do. At the very same time that few farmers can earn a living from their land, more cities are willing to buy up water rights. And as cities grow, the mandate to provide citizens with clean, plentiful water becomes all the more pressing.

The Middle Rio Grande is New Mexico’s only remaining habitat for the silvery minnow, a fish whose survival has prompted heated battles over how the river’s water should be allocated.

Unlike some cities, Santa Fe’s water policy is progressive, especially when it comes to connecting land development with water use. Like all thirsty cities, however, Santa Fe may still be harming the river and jeopardizing the future of small farms in New Mexico.

Transfers like Vannetta Perry’s—164 acre-feet from near Socorro to Santa Fe—mean that that agricultural water is converted to municipal use. They also divert water from the Rio Grande further upstream than it has historically flowed.

Four years ago, the Middle Rio Grande Endangered Species Collaborative Program—within which 16 different agencies and interest groups work to keep water flowing to irrigators and cities, while still providing water for the endangered silvery minnow—proposed a study of how water rights transfers were affecting river flows. According to that document, upstream water transfers could potentially affect flows that are critical to the minnow’s survival. The study was never funded, however, and the OSE continues to evaluate each water transfer on an individual basis, without considering their cumulative impacts.

Still, some agencies are concerned that upstream water transfers might harm their ability to comply with the federal law requiring them to protect the minnow within the Middle Rio Grande.

The US Fish and Wildlife Service—whose job it is to enforce the Endangered Species Act and hold water management agencies accountable for keeping enough water in the river for fish—had little to say about how transfers might impact the fish. But the US Bureau of Reclamation’s Albuquerque area manager, Mike Hamman, says his agency is definitely interested in how upstream water transfers might affect its ability to comply with the Endangered Species Act.

When water is taken out of the river at a point higher than where it’s historically been diverted, he says, it can cause incremental losses from that lower stretch of the river.

The bureau is working with the OSE to describe and analyze those losses, as part of a plan that will determine how the river is operated over the course of the next decade. In the meantime, no one knows what those losses might be—or understands their consequences to the river, its ecosystem or its wildlife.

Worried that the stream of transfers will dry the river, Santa Fe-based WildEarth Guardians is protesting Perry’s permit application, as well as that of Ravi and Addy Bhasker, who applied to transfer 119 acre-feet of water from the Socorro Ditch to Santa Fe.

“The legacy of the transfers is that we’re killing the river and drying up farmland,” says executive director John Horning, “and I don’t think that’s something Santa Feans are aware of and would feel good about.”

According to Horning, the transfer of water from farms to cities jeopardizes the state’s future food security.

“I just think it would be an unfortunate and tragic expression of state water policy if we simultaneously made cities’ water supplies more secure while we diminished the water supplies available to grow food locally in New Mexico along the Middle Rio Grande,” he says. “The overarching point is, if we want a living river, and if we want to have a better, more secure local food supply, then the state’s current policy needs to be changed.”

It’s surprising to hear Horning talk this way—this is a man who, to some, epitomizes last decade’s “fish versus farmers” battle to keep water flowing through the Middle Rio Grande for the silvery minnow—but his thinking seems to have evolved.

Agriculture in New Mexico does use vast amounts of water, accounting for 75 percent of the state’s surface water use. But according to an earlier Bureau of Reclamation study, flood irrigation can also recharge shallow aquifers. And it supports the greenbelt growing along the Rio Grande’s system of irrigation ditches and canals.

“It’s ironic that our position here is aligned with farmers who are largely flood-irrigating alfalfa, because I’m no fan of flood-irrigating alfalfa, but in this case, it’s the lesser of two evils,” Horning says with just a trace of optimism. “I still hold out hope that we can see changes in how irrigated agriculture is practiced down the road, a future agriculture that would be better suited for the dry region that we live in.”

These transfers, he says, foreclose that opportunity altogether.

It may already be too late. According to Horning, there are only 20,700 acres of irrigated land in the entire Middle Rio Grande (not including pueblo lands) with available water rights that haven’t already been sold. That doesn’t bode well for farming in the valley.

WildEarth Guardians isn’t opposed to all water transfers, Horning says, or even to those that move water from agricultural to municipal uses. But moving water upstream without considering its effect on the Rio Grande itself is a particularly bad idea.

“We’re shrinking the volume of water that’s in the river, and we’re doing it in areas where the river needs it most and has it least—and that’s down below, in the [area of] Los Lunas, Belen and Socorro,” he says. “That stretch of river has less and less water in it because of these water transfers, and it’s a smaller and, more frequently, a drier river, because the water is being consumed in Albuquerque, Santa Fe, Rio Rancho, instead of being consumed on farmland in Socorro and Valencia counties.”

It’s hard for most people to understand, never mind care about, the intricacies of water rights. It may be even harder to figure out exactly how the loss of five, or 20, or 100 acre-feet each year actually affects the Rio Grande’s flows. But Horning is adamant that it’s important. “What we’re talking about is a river that doesn’t die from one thing,” he says. “It dies the death of a thousand cuts.”

Meanwhile, Vannetta Perry sees her transfer as a way to protect farming in the Middle Rio Grande. “It is so deeply ingrained in me that I won’t sell the farm,” she says. “That’s why I’m selling the water rights, so I can keep the farm and at least keep that little bit of acreage green.” Farming, she says, keeps the Middle Rio Grande green. With the river controlled between its banks, it’s the system of ditches, canals and drains that sustains the bosque and keeps cottonwoods, willows and other vegetation alive throughout the valley.

But in reality, as the demand for water increases, fewer family farms will survive. And as more farmers sell their water rights to cities upstream, less water will make it through the irrigation ditches of their neighbors. Even if farmers like Perry say they’ll lease water from the local irrigation district—a move that’s legal if not sustainable—it’s hard to imagine that a future owner would farm land that lacks water rights.

There are ways to stave the loss of water and farmland—on a small scale, some acequia associations are succeeding—but it takes more than just pressuring neighbors not to sell.

It requires changing farming practices and consumer habits. Let’s be honest: growing alfalfa has always been wasteful and never been lucrative. But are New Mexicans willing to pay the price as farmers transition to more sustainable crops?

Sure, the OSE evaluates each of those water transfers—from farms to cities, from downstream to upstream—but perhaps New Mexicans themselves need to choose a vision for the future: sprawling new developments and water-intensive industries, or farms growing food and farmers who earn enough to keep their land and their water.

As for Perry, even if the state approves her transfer and she pays off the farm loan, she doesn’t know what will happen in the long term. “My children don’t want to farm,” she says, “so I don’t know what they’ll do when I’m gone with the farm.” She laughs, but doesn’t sound happy. SFR

Pueblos, farmers, cities and corporations all hold rights to the Rio Grande’s water, and it’s the Office of the State Engineer’s job to track rights and approve any trades from one user to another.